Public Committee Against Torture in Israel v. Government of Israel: U.S. Military Commissions through the Lens of the Supreme Court of Israel

October 1, 2007

Michael A. Newton

The legal dimension of the struggle to defeat terrorists has at times overshadowed the armed struggle, as the nature of the conflict itself has changed and the tides of politics and public opinion have swirled. In modern conflict, the overall mission is necessarily intertwined with political, legal, and strategic imperatives that are not accomplished in a legal vacuum or by undermining the threads of legality that bind diverse components of a complex operation together. The struggle against transnational terrorists confronts civilized societies and the military commanders in their service with the challenge of implementing humanitarian restraints in an environment marked by utter disregard for the bounds of international law on the part of the adversary.  Recognizing the inherent difficulty of a sustained “war against rampant terrorism,” the President of the Israel Supreme Court, Aharon Barak, wrote that the “armed conflict is not undertaken in a normative vacuum. It is undertaken according to the rules of international law, which establish the principles and rules for armed conflicts. The armed conflict against terrorism is an armed conflict of the law against those who seek to destroy it.” Despite their own obligations to comply with the “law of war during all armed confl icts, however such conflicts are characterized,” professional military forces are confronted with an adversary that intentionally targets civilians and participates in armed conflict without legal authority to do so....

Public Committee Against Torture in Israel v. Government of Israel: U.S. Military Commissions Through the Lens of the Supreme Court of Israel